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IN THE CHANCERY COURT OF TENNESSEE
FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS
IN RE ADOPTION OF:
AMH, a Minor,
JERRY L. BAKER and wife,
LOUISE K. BAKER,
Petitioners, No. CH-01-1302-3
v.
SHAIO-QIANG (JACK) HE and
QIN (CASEY) LUO (HE),
Respondents.
MEMORANDUM OPINION and ORDER OF JUDGMENT
ON PETITION TO TERMINATE PARENTAL RIGHTS
and PETITION TO MODIFY CUSTODY
This cause came on to be heard for trial on February 23, 2004, upon a Petition for Adoption
and To Terminate Parental Rights, filed by Jerry L. Baker and wife, Louise K. Baker (“the Bakers”),
Petitioners, on June 20, 2001, and also upon a Petition to Modify the June 4, 1999, Consent Order
Awarding Custody, filed by Qin Luo (He), Petitioner, in the Juvenile Court of Memphis and Shelby
County, Tennessee, on May 29, 2001. After a careful review of the testimony of each of the
witnesses, the trial exhibits, relevant statutory provisions and case law, arguments of the respective
counsel for the parties and the guardian ad litem, and the entire record in this cause, the Court
hereby grants the Petition to Terminate Parental Rights, filed by the Bakers, and terminates the
parental rights of Shaio-Qiang (Jack) He and Qin (Casey) Luo He (“the Hes”). The Court also
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denies the Petition to Modify Custody, filed by Qin Luo (He). Specifically, this Court finds that (1)
the Hes willfully abandoned AMH for a period exceeding four (4) months, (2) the Hes provided no
support for a period exceeding four (4) months, (3) the Hes only sought custody of AMH to prevent
the Hes’ deportation, and (4) it would be in AMH’s best interest to terminate the Hes’ parental rights
and to remain with the Bakers. The Court will hold the Bakers’ Petition For Adoption in abeyance
until the Court’s decision on the Petition to Terminate Parental Rights and the Petition to Modify
Custody is final.
The Petition to Modify was transferred to this Court pursuant to Tennessee Code Annotated
§ 36-1-116(f)(1). The Court heard testimony from twenty-eight (2 witnesses, from February 23,
2004, until March 2, 2004. The following witnesses testified during the trial: Julie Mize, Michael
Lowry, Brandy Hope Baker, Nancy Diane Thorn, Qin (Casey) Luo (He), Rebecca Smith, Louise
Baker, Jerry Leonard Baker, Jr., Dr. Yih-Jia Chang, Diane Chunn Brower, Kevin Weaver, Sarah
Cloud, Candace Brown, Elizabeth McCord Marshall, William Webb, Dr. John Copper, Shaio-Qiang
(Jack) He, Kenny Yao, Dr. John Robert Hutson, Dr. John Victor Ciocca, John Astor, Larry Parrish,
Catherine Claymon, John D. Walt, Kathryn E. Story, Kimbrough Mullins, guardian ad litem,
Stephanie Johnson, and Dr. David Bruce Goldstein. The Court heard arguments of counsel for the
parties regarding several pending motions on March 22-23, 2004, and heard closing arguments of
counsel for the parties on April 12, 2004. The Court has made a careful review of the testimony of
each of the witnesses, the seventy-nine (79) trial exhibits, relevant statutory provisions, and case
law. The Court carefully observed the demeanor of each of the witnesses who testified. The Court
has also reviewed the pleadings and the entire record in this cause.
Hodges v. S. C. Toof Co., 833 S.W.2d 896 (Tenn. 1992). 1
O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995); Wiltcher v. Bradley, 708 S.W.2d 407 (Tenn. 2
Ct. App. 1985), perm. app. denied, (March 3, 1986).
U.S. Const., Am. 14, § 5; TN Const., Art. 1, § 8; Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993), citing 3
Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Dawn Coppock, Coppock on Tennessee Adoption Law,
(Matthew Bender, 2003), at 46.
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Tennessee Code Annotated § 36-1-113(k) requires the Court to enter an order which
makes specific findings of fact and conclusions of law. Termination of parental rights requires clear
and convincing proof of one of the statutory grounds for termination and a finding that termination is
in the best interest of the child. Clear and convincing evidence eliminates serious doubt and 1
produces a firm belief or conviction as to the truth of the allegations. The Court is mindful of the 2
great deference that must be given to the constitutionally protected rights of biological parents.
Parents, including parents of children born out of wedlock, have a fundamental liberty interest in
the care and custody of their child under both the United States and the Tennessee Constitutions.
The right to rear one’s child is so firmly rooted in our culture that the United States Supreme Court
has held it to be a fundamental liberty interest protected by the Fourteenth Amendment of the
United States Constitution. 3
The Tennessee Adoption Law is set out in Tennessee Code Annotated § 36-1-101 et seq.
The primary purpose of the adoption law is to provide means and procedures for the adoption of
children that recognize and effectuate, to the greatest extent possible, the rights and interests of
persons affected by adoption, especially those of the adopted persons, which are specifically
protected by the United States and the Tennessee Constitutions. To those ends the adoption law
seeks to ensure, to the greatest extent possible, among other things, that:
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(1) Children are removed from the homes of their parents or guardians only when
that becomes the only alternative which is consistent with the best interest of the
child.
(2) Children are placed only with those persons who have been determined to be
capable of providing proper care and a loving home for an adopted child.
(3) The rights of children to be raised in loving homes which are capable of
providing proper care for adopted children and that the best interests of children in
the adoptive process are protected.
(4) The adoptive process protects the rights of all persons who are affected by that
process and who should be entitled to notice of the proceedings for the adoption of
a child.
The secondary purpose of the adoption law is, among other things, to protect biological parents
and guardians of children from decisions concerning relinquishment of their parental or guardian’s
rights to their children or wards which might be made as a result of undue influence or fraud.
Based on the witnesses’ testimony, the trial exhibits, the arguments of the attorneys for the
respective parties and the guardian ad litem, the relevant statutory and case law, and the entire
record in this cause, the Court makes the following specific Findings of Fact and Conclusions of
Law:
I. GENERALLY SIGNIFICANT FACTS
1. Mr. Baker was born September 29, 1958, in Memphis, Tennessee.
2. Mrs. Baker was born July 24, 1961, in North Carolina.
3. Mr. and Mrs. Baker have been married to each other and living together since July 12,
1982.
4. Mr. and Mrs. Baker have four (4) natural born children: two are college age, one is a
teenager and one is age four.
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5. Mr. and Mrs. Baker have continuously been resident citizens of Shelby County, Tennessee,
since February 27, 1993.
6. Mr. Baker was employed by Pinnfund USA, as a mortgage banker, from approximately
1996 to 2001, and earned approximately $435,000.00 during the last year he was
employed by Pinnfund. Mr. Baker is a high school graduate and attended college.
7. Since leaving his employment at Pinnfund, Mr. Baker has earned an annual income ranging
from approximately $80,000 to $125,000. His earning capacity has been adversely
affected by having to locate new employment, since Pinnfund closed; by having to start
over and work his way up through the ranks with a new employer; and by his inability to
work at an employment that involves travel because of his concerns and involvement with
this cause.
8. Mrs. Baker has been a housewife and mother during the Bakers’ marriage and earns a
small amount of income by doing babysitting in the Bakers’ home. Mrs. Baker has a high
school education.
9. Mr. He was born July 18, 1964, in the Peoples Republic of China and has been a citizen of
that country since that time.
10. Mr. He first entered the United States from China on a student visa in March 1995, and has
continuously resided in the United States since that date, except for a trip to the Peoples
Republic of China in May 1998, returning in June 1998.
11. Mr. He received a Masters degree in teaching English as a second language from Hunan
University in the Peoples Republic of China in 1988. He taught English at Nanjing
University in the Peoples Republic of China from 1988 until 1995 when he came to the
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United States to further his education. He has been qualified to teach English as a second
language to persons who do not speak English since entering the United States in March
1995. He pursued a Masters degree in English as a second language at Arizona State
University from 1995 to 1997. He finished his course work for the Masters degree, but he
did not have the opportunity to defend his thesis and obtain his degree because he came to
the University of Memphis in August 1997. He enrolled at the University of Memphis in
August 1997 to pursue a Doctor of Philosophy degree in economics. He did not finish his
course work for his Ph.D in economics because he switched his course of study to obtain a
Masters degree in Management Information Systems at the University of Memphis. He
finished his course for his Masters degree in Management Information Systems in 1998,
but he did not receive his degree.
12. Mrs. He was born on March 21, 1968, in the People’s Republic of China and has been a
citizen of that country since that time. She entered the United States on June 28, 1998,
and she has resided in the United States since that date.
13. Mrs. He does not speak or understand English proficiently and was provided qualified
translators of her choice throughout the proceedings in this cause. At times during the trial
Mr. He acted as Mrs. He’s translator, by agreement of Mrs. He. Mrs. He remained aware of
what transpired during the trial from those translators.
14. On June 28, 1998, Mrs. He was allowed entry into the United States on a F-2 visa, as the
wife of a student on a F-1 student visa. Because she and Mr. He falsely represented to the
United States Government that they were married to each other in the Peoples Republic of
China, she has been in this country illegally.
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15. Since September 1999, both Mr. and Mrs. He have had no legal right to remain in the
United States and have been subject to deportation from the United States to the Peoples
Republic of China.
16. Although both of the Hes have been employed and have earned income while in the United
States, neither of the Hes can earn income legally while remaining in the United States
because of their immigration status as illegal aliens.
17. Mr. He was arrested for sexual assault on April 27, 1999.
18. Mr. He was acquitted of the sexual assault charge in February 2003.
19. AMH was born out of wedlock on January 28, 1999, and AMH’s birth parents are Shaio-
Qiang (Jack) He and Qin (Casey) Luo.
20. Mr. He questioned whether he was the biological father of AMH and requested that the
guardian ad litem arrange blood testing for Mr. He, Mrs. He, and AMH to determine
paternity of AMH.
21. Mr. He filed an acknowledgment of paternity on March 15, 2002.
22. Shaio-Qiang He and Qin Luo were legally married in Memphis, Shelby County, Tennessee,
on January 7, 2002.
23. By virtue of being born in the United States, AMH is a citizen of the United States.
24. AMH has resided in Shelby County, Tennessee, since AMH’s birth on January 28, 1999.
25. AMH is a normal, healthy five-year-old child.
26. The Bakers have had legal custody and guardianship of the person of AMH continuously
since June 4, 1999. On June 4, 1999, the Hes filed a petition to transfer custody of AMH to
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the Bakers and signed a Consent Order Awarding Custody, which was entered by the
Juvenile Court of Memphis and Shelby County, Tennessee.
27. The Consent Order Awarding Custody mandated the Bakers to be the legal custodians and
guardians of the person of AMH and entitled the Bakers, as a matter of right, to the physical
custody of AMH, the right to determine the nature of the care and treatment of AMH,
including ordinary medical care, and the right and duty to provide for AMH’s care,
protection, training, and education, and AMH’s physical, mental, and moral welfare.
28. Since June 4, 1999, the Bakers have undertaken and performed their duties and
responsibilities as AMH’s legal custodians and guardians.
29. All parties, including Mr. and Mrs. He, knowingly and voluntarily signed the June 4, 1999,
Consent Order Awarding Custody, without being induced by any fraud or undue influence.
30. Attorney Kimbrough Mullins was appointed to act as guardian ad litem for AMH, by consent
of both the Bakers and the Hes, by order dated July 24, 2001.
31. The Hes, the Bakers, and the guardian ad litem participated, by agreement, in mediation
through the Christian Conciliation Service of the Second Presbyterian Church in 2002, but
the mediation did not result in a resolution of this matter.
II. LITIGANT CREDIBILITY
The Court has carefully scrutinized the testimony of the Hes and the Bakers. Because they
have an interest in the outcome of the case, the reliability of their testimony has been viewed in
relation to other evidence and the entire record in this cause, for corroboration and/or inconsistency
and the Court has weighed their testimony accordingly.
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The Court observed Mr. Baker testify for approximately three (3) hours of live testimony at
trial. Mrs. Baker testified for approximately five (5) hours of live testimony at trial. Mrs. He testified
for approximately ten (10) hours of live testimony at trial. Mr. He testified for approximately seven
(7) hours of live testimony at trial. The Court also observed Mr. He testify for approximately six (6)
hours, by a video-tape deposition that was admitted as Trial Exhibit 20.
The Court was physically present with the Bakers and the Hes in the courtroom for over
ninety-one (91) hours of trial testimony, over fifteen (15) hours of arguments on motions after the
conclusion of the proof, and six (6) hours of closing arguments. The Court observed each of them
throughout the trial proceedings and interacted, through counsel, with them as the trial proceeded
to conclusion. The Court makes the following findings of fact regarding credibility of the witnesses:
32. Mr. Baker impressed the Court as a man who has a great deal of love, care, and concern
for children in general, but who has an enormous amount of love, care, and concern for his
own natural born children and for AMH. He testified in an honest, straightforward, sincere
manner. Mr. Baker impressed the Court with his sincerity and the concern he expressed
for AMH’s welfare and safety. Mr. Baker has demonstrated concern for and a willingness
to help others who are in need, including the Hes. As one example, Mr. Baker helped Mr.
He when Mr. Hes’ vehicle was in the shop for repairs.
33. Mrs. Baker impressed the Court as a sincere, honest, credible witness. She too has
demonstrated that she has a great deal of love, care, and concern for children in general,
but she also has an enormous amount of love, care, and concern for her own natural born
children and for AMH. Mrs. Baker also impressed the Court with her care and concern for
AMH’s welfare and safety. Mrs. Baker has demonstrated concern for and a willingness to
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help others who are in need, including the Hes. For example, she took Mrs. He to obtain
social services and to apply for TennCare insurance coverage for the Hes’ second child,
Andy, who was born in October 2000. She took Mrs. He and Andy home from the hospital
after Andy’s birth. She loaned the Hes a baby bed for Andy. She went to the Hes’
apartment to show Mrs. He how to feed, burp, bathe, and change Andy’s diapers. She
took Andy to the doctor’s office because Mr. He was too busy, and she took Andy to other
appointments because Mrs. He was too busy.
34. Both of the Bakers demonstrated their concern and care, and lack of any animosity toward
the Hes, by foregoing their church and other regular activities to accommodate the Hes’
visits with AMH. The Bakers also served the Hes dinner on several of their visits, and
allowed the Hes to bring friends with them to the Bakers’ home for visits, serving the friends
dinner as well. On one occasion, the Bakers gave Mr. He a birthday card and a gift
certificate to a restaurant for his birthday.
35. Mr. He is highly educated, both in the Peoples Republic of China and in the United States,
and exhibits a high level of intelligence. He has demonstrated that he also has a high level
of knowledge of the culture in the United States, that he is familiar with the justice system in
Shelby County, Tennessee, and that he is proficient in his knowledge and use of the
English language. He is proficient in computer skills, including the ability to access the
Internet and to use website technology to garner resources and seek assistance from
experts. He has an aggressive personality and shows no propensity to be deterred or
intimidated. He is a thoughtful and deliberate person who exhibits a proclivity to calculate,
plan, and carefully predetermine his action and behaviors. At all times relevant to this case,
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Mr. He has demonstrated the ability to access knowledgeable advisors in any area in which
he needs assistance, to scrutinize the advice given, and, if dissatisfied with the advice,
reject the advice and seek out other advisors.
36. Since 1998, Mr. He has repeatedly engaged in a pattern of conduct marked by
deceitfulness and dishonesty, without remorse, repentance, or conscience, and has shown
a propensity to justify all means, including perjury, for what Mr. He deems to be justifiable
ends.
37. Mr. He admitted that he lied about his income, under oath, in his December 20, 2001,
deposition and that he said things that he knew were not the truth. During his deposition,
Mr. He also knowingly and willfully gave false testimony with respect to material facts
concerning his and Mrs. He’s assets. The Court has previously found that Mr. He
committed perjury while under oath in Court hearings and pleadings filed in this cause.
38. The Court reaffirms and incorporates herein by reference the findings made by the Court
relative to the perjury of Mr. He in testimony given before the Court on February 14, 2002,
as memorialized in the February 22, 2002, order entitled “Judgment On Order To Show
Cause Pertaining To Passport” and the order entitled “Judgment On Order To Show Cause
Pertaining To Documentation Of Marriage In The Republic Of China.”
39. The evidence also shows that Mr. He tried to procure an F-2 visa, in 1997, for another
Chinese woman, who Mr. He claimed was his wife. Mr. He later admitted that this woman
was not his wife and that he had committed a fraud on the University of Memphis.
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40. Mr. He made material false statements on a loan application, dated October 18, 2001,
relative to his employment, his income, his status as a student, and his personal references
for the purpose of securing a loan for the purchase of a new vehicle.
41. Mr. He first entered the United States on a F-1 Student visa which allowed him to be
employed and earn income. However, after he was suspended by the University of
Memphis on September 20, 1999, and his student visa was revoked, Mr. He was not legally
permitted to be employed and earn income in the United States. Nevertheless, Mr. He has
been employed and earned income in the United States, since September 20, 1999, and
has failed to report his income to the Internal Revenue Service, thus defrauding the United
States government.
42. Mrs. He is an impetuous person not subject to being intimidated or deterred in achieving
whatever she sets as her goal. The evidence shows that she is calculating, almost
theatrical, in her actions. The evidence further shows that she is dishonest and
manipulative, and has a history of acting in an unstable manner when it serves her own
self-interest. For example, during cross-examination, Mrs. He would begin sobbing when
asked difficult questions. However, Mrs. He would immediately regain her composure
when asked subsequent questions. It appears to the Court that Mrs. He’s courtroom
hysterics were calculated by Mrs. He in an effort to avoid answering the difficult crossexamination
questions.
43. Though Mrs. He speaks sufficient English to carry on her daily affairs in the United States,
she is not as proficient as Mr. He in knowledge or use of the English language and, unlike
Mr. He, sometimes needs assistance with translation in technical or extraordinary use of
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the English language. She has confidence in Mr. He, prefers Mr. He as her translator, has
no desire to part company with Mr. He for any reason and intends to cooperate fully with
Mr. He to remain together with him as a family and believes Mr. He has never failed to keep
her fully and honestly informed about the legal matters involving AMH.
44. Although Mrs. He does not speak the English language fluently, she appears to speak and
understand English better than she professes. For example, Mrs. He spoke English during
some of the Hes’ visits with AMH at the Bakers’ home and when Mrs. He took the Hes’
other children for medical treatment. She also spoke English during the incident when she
was holding a sign outside of the Bakers’ home, and the Bakers’ neighbor, Rebecca Smith,
asked Mrs. He to move her car, and she spoke English during the December 2003, incident
at the Wal-Mart store. During the trial, in response to a question from attorney Linda
Holmes, Mrs. He responded to the question by speaking in English, before the interpreter
had begun interpreting Ms. Holmes’ question to Mrs. He. Mrs. He said, “Mr. Parrish filed
legal motion,” then she stopped speaking English and began responding to the question in
Chinese.
45. Mrs. He admitted signing a document in the Peoples Republic of China that falsely stated
that she and Mr. He were married for the purpose of obtaining a visa allowing her to come
to the United States.
46. Although the Hes were not married at the time, Mrs. He entered the United States illegally,
in 1998, on a F-2 visa, as the wife of a person in the United States on a student visa,
despite the fact that she indicated that she was single, not married, on AMH’s birth
certificate.
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47. Because of her status as an illegal alien, Mrs. He was not legally permitted to be employed
and earn income. Nevertheless, Mrs. He has been employed and earned income in the
United States throughout most of her stay, but has failed to report her income to the
Internal Revenue Service, thus defrauding the United States government.
48. Mrs. He only seems to be interested in regaining custody of AMH when deportation seems
imminent. This fact is evidenced by Mrs. He filing the two (2) petitions to modify custody in
close proximity to receiving calls from the United States Immigration & Naturalization
Service (“INS”), regarding Mr. and Mrs. Hes’ immigration status.
49. From the totality of the credible proof at trial, both Mr. and Mrs. He have shown themselves
to be persons who do not consider themselves to be bound by the rule of law. Mr. and Mrs.
He have demonstrated that they will do and say anything in order to achieve their desired
goals.
III. CREDIBILITY OF OTHER WITNESSES
50. Dr. John Copper testified for the Hes during the trial as an expert in Chinese culture, to
explain the Hes’ conduct. Dr. Copper testified that in China telling a falsehood about family
matters would be bad, but telling a falsehood to the government would not be as bad. The
Court finds Dr. Copper’s testimony to be totally lacking in credibility. The Court agrees with
the findings of the United States Bankruptcy Court for the Western District of Tennessee, in
its October 31, 2003, Memorandum Opinion, which was entered into evidence as Trial
Exhibit 26, that Dr. Copper’s testimony is unbelievable, and totally lacking in credibility. The
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Court further finds that Dr. Copper is not an expert in Chinese adoption law, nor is he an
expert on termination of parental rights.
51. Dr. Yih-Jia Chang testified as an expert witness on behalf of both Mr. and Mrs. He. The
Court has previously ruled that the underlying facts or data relied upon by Dr. Chang in
forming her opinion regarding Mrs. He’s mental health indicate a lack of trustworthiness,
and excluded Dr. Chang’s testimony as to Mrs. He.
52. Dr. Chang testified, as to Mr. He, that she based her opinion about Mr. He’s mental health
on her clinical evaluation, mental status examination, and the MMPI test results. Dr. Chang
testified that her clinical evaluation and mental status examination of Mr. He were based on
questions she asked of, and responses given by, Mr. He. The Court finds the credibility of
Mr. He to be seriously lacking; therefore, the opinions given by Dr. Chang, based on Mr.
He’s credibility, are entitled to no weight.
53. David B. Goldstein, Ph.D. (“Dr. Goldstein”), was appointed by the Court to serve as the
court-appointed expert to advise the Court concerning the psychological evaluation of AMH.
Dr. Goldstein was appointed by the Court upon the recommendation of the guardian ad
litem and with the consent of the Bakers and the Hes. Initially, Dr. Goldstein was requested
to conduct a psychological evaluation of AMH; however, the Court later, on February 12,
2002, expanded the evaluation to include the Bakers and the Hes, to the extent that Dr.
Goldstein deemed necessary to prepare the psychological report concerning AMH. Dr.
Goldstein ultimately determined that he could not conduct an evaluation of the Bakers and
the Hes because Dr. Goldstein was concerned that his evaluating AMH, the Bakers, and
the Hes might present a conflict of interest, since he was not conducting strictly a custody
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evaluation, but an evaluation dealing with the possible termination of parental rights. Dr.
Goldstein was also concerned that he was not qualified to conduct an examination of the
Hes because of the language barrier.
54. Dr. Goldstein served the Court and provided the Court with his opinion, without any interest
in the outcome of the cause and without representing the interests of either the Hes or the
Bakers. Dr. Goldstein provided the Court with the benefit of his expertise regarding AMH’s
psychological well-being, and the possible affects on AMH of remaining with the Bakers
and having contact with the Hes ended, or placing AMH with the Hes, and having contact
with the Bakers ended.
55. The Court finds Dr. Goldstein to be a highly qualified, highly respected, experienced
psychologist, who has been practicing in the Memphis, Shelby County, Tennessee, area for
many years. The majority of Dr. Goldstein’s training has been in the area of child
psychology. Dr. Goldstein was diligent and thorough in his examination and evaluation of
AMH and AMH’s attachment with the Bakers, and with his evaluation of AMH’s reaction to
AMH’s visit with the Hes in Dr. Goldstein’s office, on September 23, 2003. Dr. Goldstein
evaluated AMH over a period of several months. Dr. Goldstein has shown no bias or
prejudice in the performance of his duties or in his testimony , but gave the Court his honest
opinion, based on his clinical evaluation of AMH, his research, and his years of experience.
The Court found Dr. Goldstein to be a very knowledgeable, honest and forthright witness.
56. Dr. John Robert Hutson is a highly qualified, highly respected, experienced psychologist,
who has practiced in the Memphis, Shelby County, Tennessee, area for many years. Dr.
Hutson never personally interviewed or evaluated AMH, so his testimony was limited to that
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which he observed on the videotaped session with the Bakers, the Hes, and AMH in Dr.
Goldstein’s office on September 23, 2003, and his experience as a psychologist. Dr.
Hutson’s testimony was of little assistance to the Court.
57. Dr. John Victor Ciocca is a highly qualified, highly respected, experienced psychologist,
who has practiced in the Memphis, Shelby County, Tennessee, area for many years. Dr.
Ciocca never personally interviewed or evaluated AMH, so his testimony was limited to that
which he observed on the videotaped session with the Bakers, the Hes, and AMH in Dr.
Goldstein’s office on September 23, 2003, and his experience as a psychologist. Dr.
Ciocca had no opinion as to the level of AMH’s psychological attachment to the Bakers or
the Hes. Dr. Ciocca’s testimony was of little assistance to the Court.
58. The guardian ad litem, Ms. Kimbrough Mullins, is a skilled attorney who has served the
courts in Shelby County, Tennessee, as a guardian ad litem for the past fifteen (15) years.
Ms. Mullins has served the Court, and represented and advocated AMH’s best interests, to
the best of her ability, in an exemplary manner, under very difficult circumstances. Ms.
Mullins, in her fiduciary capacity to AMH and to the Court, has acted in good faith, has
shown no bias or prejudice in the performance of her duties, but has steadfastly and
diligently advocated for what Ms. Mullins considers to be in AMH’s best interest, regardless
of the consequences, based solely upon the information she gathered during her
investigation. The Court found her to be an honest and forthright witness.
59. Kevin Weaver has been an attorney practicing in Memphis, Shelby County, Tennessee, for
nineteen (19) years. For the last eleven (11) years he has practiced primarily adoption law.
His practice consists of approximately 75 to 80% adoption cases. During 2003, Mr. Weaver
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finalized over one hundred (100) adoption cases. He has lectured and taught adoption law
to other attorneys. The court finds that Mr. Weaver is an expert in the area of adoption law.
The Court finds that Mr. Weaver was a credible witness.
60. Julie Mize, Michael Lowry, Nancy Diane Thorn, Rebecca Smith, Diane Chunn Brower,
Sarah Cloud, Candace Brown, Kenny Yao, John Astor, John D. Walt, Kathryn E. Story, and
Stephanie Johnson, all testified during the trial of this cause. Each of these witnesses
testified honestly and without bias. The Court finds each of these witnesses’ testimony to
be credible.
IV. DUE PROCESS CLAIMS
61. Both before and after June 4, 1999, the Hes had an ongoing relationship with John Walt, an
experienced attorney practicing for many years in Memphis. Mr. Walt advised and
interacted with Mr. He, as an outreach ministry without pay, to assist Mr. He with legal
issues associated with sexual assault charges being pressed by the University of Memphis
and by the State of Tennessee. Mr. Walt advised Mr. He that the outcome of said charges
would be determinative of Mr. He’s status as a student at the University of Memphis and his
status as a legal alien in the United States. Mr. Walt met with Mr. He on five (5) or more
occasions to advise Mr. He on the charges made by the University of Memphis and also to
assist Mr. He in obtaining an attorney to represent Mr. He on the criminal charges brought
by the State.
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62. Although Mr. Walt was available to advise Mr. He about AMH’s custody, Mr. He never
made any mention of AMH to Mr. Walt, nor of the difficulties the Hes were having regarding
custody of AMH.
63. Both before and after June 4, 1999, the Hes engaged the services of at least two attorneys
in Memphis, Ms. Dell Stiner and another un-named attorney, to advise and represent the
Hes in civil litigation arising from physical injuries Mrs. He allegedly sustained in November
1998. The Hes also spoke to another attorney that Ms. Chunn referred them to, Mr. Parke
Morris, about the civil litigation. Neither of the Hes ever mentioned to any of these three
attorneys the need for representation or advice regarding placing or regaining custody of
AMH.
64. Both before and after June 4, 1999, Mr. He engaged the services of at least three attorneys
to advise him and represent him in defense of the criminal charges brought by the State:
Mr. AC Wharton, Mr. Stephen Sauer, and Mr. James Hodges, Jr. Mrs. He accompanied
Mr. He on many occasions when Mr. He met with these attorneys. Neither of the Hes ever
mentioned to any of these attorneys any need for representation or advice relative to
AMH’s custody. In fact, the Hes never even told these three attorneys about the existence
of AMH.
65. Mrs. He testified that she sent her younger son, Andy, to the Peoples Republic of China
because Mr. Hes’ criminal attorney, AC Wharton, told Mrs. He that “they” would take the
Hes’ son and put him up for adoption if Mr. He did not agree to accept the guilty plea offer
on Mr. He’s criminal charge. Neither of the Hes ever mentioned to Attorney Wharton that
20
they also had an older child (AMH), or that they were having difficulty regaining custody of
AMH.
66. Although Mr. and Mrs. He had numerous opportunities, neither of them ever sought the
advice of any of the above-mentioned attorneys, never discussed the issue of the Hes
giving up custody or of regaining custody of AMH, and never mentioned to any of these
attorneys that the Hes had a child.
67. On June 2, 1999, attorney Kevin Weaver met with Mr. He and the Bakers and fully advised
Mr. He and the Bakers of the legal ramifications of filing a petition for custody and of signing
a consent order awarding custody of AMH. Mrs. He, after being fully advised of the
meeting and of the purpose of the meeting by Mr. He, waived her right to be present at the
meeting and told Mr. He to tell the others at the meeting that she was ready to proceed.
Mr. Weaver answered all of Mr. He’s and the Bakers’ questions during the meeting. Mr. He
later advised Mrs. He of the information that Mr. Weaver imparted at the meeting.
68. On June 3, 1999, Ms. Chunn and Mr. Kenny Yao, an experienced interpreter in English and
Mandarin Chinese, met with Mrs. He, alone, in the Hes’ apartment. Ms. Chunn wanted to
make certain that Mrs. He understood what she would be doing if Mrs. He signed a consent
custody order, and whether Mrs. He was one hundred percent willing for a transfer of
custody of AMH from the Hes to the Bakers. Ms. Chunn explained to Mrs. He the things
that Kevin Weaver had said to Ms. Chunn, the Bakers, and Mr. He, the day before in the
meeting in Mr. Weaver’s office. Mrs. He indicated that she understood everything that Ms.
Chunn had told her through Mr. Yao. Mrs. He asked no questions of Ms. Chunn, through
Mr. Yao.
21
69. On June 4, 1999, Ms. Sarah Cloud, with the assistance of a qualified interpreter, privately
met with Mrs. He, without Mr. He, and fully explained the legal ramifications of both the
Petition For Custody and the Consent Order Awarding Custody, both of which Mrs. He later
voluntarily signed.
70. The Hes were familiar with the Juvenile Court for Memphis and Shelby County, Tennessee,
before June 4, 1999, because they had sought the services of the Juvenile Court on or
about February 23, 1999, when they spoke to Ms. Sarah Cloud about long-term foster care
through the State of Tennessee Department of Childrens Services. Although the Hes had
consulted with attorneys in the past regarding other legal matters, the Hes never inquired at
Juvenile Court about getting an attorney to provide the Hes legal advice concerning the
original transfer of custody of AMH.
71. A few months after the Hes signed the June 4, 1999, Consent Order Awarding Custody, the
Hes went to the Juvenile Court and spoke with Ms. Cloud about getting assistance to file a
petition to regain custody of AMH. Ms. Cloud directed the Hes to the appropriate Juvenile
Court office to speak to a counselor, who would assist the Hes with filing a petition to
modify custody and with putting the petition on the court docket for a hearing. Ms. Cloud
advised the Hes that they should hire an attorney for legal advice and representation, and
Ms. Cloud recommended the services of the Memphis Area Legal Services, if the Hes
could not afford to hire an attorney.
72. Both Mr. and Mrs. He had many opportunities to obtain legal advice, and did receive legal
advice from attorney Kevin Weaver, about their decision to petition the Juvenile Court to
22
place custody of AMH with the Bakers, before the Hes signed the petition and consent
order.
73. There was no law, rule, regulation, fraud, duress, undue influence, or trickery which caused
the Hes, at the outset, to petition the Juvenile Court to give legal custody of AMH to the
Bakers.
74. The evidence establishes that there was no conspiracy to deprive the Hes of their right to
due process or to the custody of AMH.
75. Ms. Sarah Cloud, Ms. Diane Chunn, Mid-South Christian Services (“Mid-South”), Mr. Kenny
Yao, Mr. Kevin Weaver, Ms. Kimbrough Mullins, Ms. Linda Holmes, Dr. David Goldstein,
Ms. Kathryn Story, and Mr. Larry Parrish played no part, individually or in concert or
conspiracy with any other persons, to encourage, discourage, or facilitate, at any time: (1)
the denial of either of the Hes’ legal rights or entitlements; (2) the Hes’ filing of a Petition for
Custody in Juvenile Court on June 4, 1999, seeking to place AMH’s custody with the
Bakers; (3) the Hes’ signing the June 4, 1999, Consent Order Awarding Custody of AMH to
the Bakers; or (4) the Bakers’ decision to file a petition to adopt AMH and to terminate the
Hes’ parental rights.
76. The first time the Bakers considered the idea of adopting AMH was in May 1999, when the
Hes suggested to the Bakers that the Hes wanted the Bakers to adopt and raise AMH.
77. The Bakers did not consider the idea of adopting AMH again until attorney Kevin Weaver
explained to the Bakers that they had a right to file a petition to adopt AMH and to terminate
the Hes’ parental rights, after the Hes signed the first Petition to Modify custody in Juvenile
Court on May 3, 2000.
23
78. The Bakers did not decide to file a petition to adopt and terminate parental rights until after
being served with the Hes’ second Petition to Modify custody, filed in Juvenile Court on
May 29, 2001. The Bakers sought legal advice of Mr. Weaver and then decided to file a
petition to adopt AMH and terminate the Hes’ parental rights.
79. The Bakers’ decision to file a petition to adopt and to terminate the Hes’ parental rights was
made exclusively by the Bakers, alone, and was not made in concert or conspiracy with any
other person or persons.
V. ABANDONMENT FACTORS
A. Chronology of Events
80. The Hes initiated the first contact with Mid-South Christian Services (“Mid-South”) through a
referral from one of the Hes’ church members. Dianne Chunn ( “Ms. Chunn”) first met with
the Hes while acting in her capacity as a birth-parent counselor for Mid-South on or about
November 1, 1998. The Hes told Ms. Chunn that Mrs. He was pregnant and they wanted
to place the unborn child for adoption. As a result of the first meeting with Ms. Chunn, the
Hes completed a “pregnancy counseling status sheet” providing Mid-South basic
information about the Hes, including that Mr. and Mrs. He were husband and wife.
81. On or about December 1, 1998, Mid-South formally opened a “birth-parent file” relating to
the Hes and the adoption. As a birth-parent counselor for the Hes, Ms. Chunn’s
responsibilities were to provide ongoing counseling to the birth parents so the Hes could
work through the pros and cons of adoption. As a part of her counseling, Ms. Chunn let the
Hes review several profiles of prospective adoptive parents. The Hes selected a
24
prospective adoptive couple and, pursuant to the Hes’ request, Ms. Chunn arranged a
meeting with the Hes and that couple to discuss the possibility of adopting AMH.
82. On January 9, 1999, Ms. Chunn met with Mr. He at the hospital because Mrs. He had been
hospitalized for vaginal bleeding, allegedly caused by an assault on Mrs. He. Mr. He told
Ms. Chunn that Mrs. He felt “cheated” because the prospective adoptive family that the Hes
met with on December 1, 1998, were not wealthy, as was the Hes’ request. Mr. He told Ms.
Chunn that the Hes felt that the prospective adoptive family should be “taking care of them”
during the birth process, that is, the family should be visiting the Hes and bringing nutritious
food and other things for the Hes. The Hes did not go through with the adoption to the
family they had first selected to adopt AMH because Mrs. He thought that family was not
wealthy enough and was too young.
83. On January 19, 1999, Mr. He asked Ms. Chunn to write a letter to the University of
Memphis to advise university officials that the Hes were not prepared financially or
emotionally to be parents at that time.
84. After AMH’s birth on January 28, 1999, AMH experienced respiratory distress, which
required AMH to remain in the hospital’s neonatal intensive care unit for eleven days. After
AMH’s birth, Mrs. He changed her mind about giving AMH up for adoption, even though the
Hes had already selected parents to adopt AMH and accepted gifts from them. Mrs. He
informed Ms. Chunn of her decision. After AMH was discharged from the hospital on or
about February 8, 1999, the Hes took AMH home to their apartment. Approximately two (2)
days later, Ms. Chunn visited with the Hes and AMH in their apartment. The Hes explained
to Ms. Chunn that they were having severe financial difficulties, and Ms. Chunn and the
25
Hes discussed the possible need for the services of the Tennessee Department of
Childrens Services (DCS) to provide long-term foster care. Ms. Chunn explained to the
Hes that Mid-South was unable to provide long-term foster care for AMH.
85. On February 10, 1999, Ms. Chunn met again with the Hes and AMH in their apartment. Mr.
He told Ms. Chunn that he had to borrow money for the Hes’ living expenses for the coming
month, and was unsure where money for their future living expenses would come from.
Mrs. He felt that the Hes would get additional money for future expenses from the lawsuit
that the Hes were planning to file for personal injuries she sustained from the alleged
assault on her.
86. On February 22, 1999, Mr. He called Ms. Chunn and told her that the Hes were still
considering placing AMH for adoption. Ms. Chunn met with the Hes on February 23, 1999,
and discussed adoption and long-term foster care.
87. On February 23, 1999, the Hes went to the Juvenile Court with AMH and talked with Ms.
Sarah Cloud about placing AMH in long-term foster care with DCS. The Hes told Ms. Cloud
that they had been talking with Ms. Chunn at Mid-South about their inability to take care of
AMH. Ms. Cloud then called Ms. Chunn, who told Ms. Cloud that the Hes initially wanted to
place AMH for adoption, but changed their minds and now wanted to place AMH in foster
care. Ms. Chunn told Ms. Cloud that Mid-South could not provide long-term foster care for
AMH, and that the Hes would have to go to DCS if the Hes needed long-term foster care for
AMH. After her conversation with Ms. Chunn, Ms. Cloud suggested that the Hes consider
placing AMH in shorter-term foster care to give the Hes an opportunity to decide whether
they would be able to take care of AMH in the future or whether they would want to place
26
AMH for adoption. Ms. Cloud suggested that the Hes return to Ms. Chunn to determine if
Mid-South could provide interim foster care for AMH, while the Hes decided what they
wanted to do with AMH.
88. On February 24, 1999, the Hes delivered AMH to Mid-South and signed an agreement
requesting that Mid-South take AMH into foster care for ninety (90) days.
89. The Bakers, who were the next family on the Mid-South foster care list, were asked by Mid-
South to serve as foster parents of AMH for ninety (90) days, from February 24, 1999,
through May 23, 1999, in order to give the Hes time to decide either to place AMH for
adoption or to undertake the responsibility to support and care for AMH. Ms. Chunn and
the Hes went to the Bakers’ home with AMH on February 24, 1999. Ms. Chunn introduced
the Hes to the Bakers, and the Hes and Ms. Chunn gave physical custody of AMH to the
Bakers, pursuant to the foster care agreement.
90. Mid-South has had a relationship with the Bakers since 1997. The Bakers were on Mid-
South’s list of persons who are qualified and willing to serve as foster parents to children in
Mid-South’s custody, who are awaiting adoption. The Bakers began keeping foster children
for Mid-South in 1997. The Bakers usually kept a foster child for seven to ten days, while
the adoption of that child was being processed. The Bakers agreed to an extended foster
care period for AMH because the Bakers had always accepted the children that Mid-South
offered, and because the Hes needed a three (3) month period of time to decide whether
they wanted to keep AMH or to give AMH up for adoption.
91. The Bakers were not under consideration as prospective adoptive parents for AMH on
February 24, 1999, as the Hes had previously selected another prospective adoptive family.
27
Prior to February 24, 1999, the Bakers had made a deliberate decision that they had no
interest in adopting any children, and in furtherance of that decision, Mrs. Baker had
surgery in August 1998, to reverse an earlier tubal ligation, in order to make it possible for
the Bakers to give birth to another child of their own.
92. AMH has been in the Bakers’ physical custody since February 24, 1999, when AMH was
twenty-seven (27) days old.
93. The Hes made their decision concerning the care, custody, and control of AMH. No one
forced the Hes to relinquish care, custody, and control of AMH to Mid-South Christian
Services, or to the Bakers. The Hes voluntarily exercised their fundamental right as
parents to transfer custody of AMH to the Bakers.
94. During the ninety-day foster care period, February 24, 1999, to May 23, 1999, the Hes
visited in the Bakers’ home for approximately one (1) hour each week, a total of
approximately twelve (12) hours during the first three months of AMH’s life. During this
period, neither the Bakers nor Mid-South placed any restrictions on the frequency or
duration of the Hes’ visits in the Bakers’ home. The Hes never requested to visit AMH more
frequently or for longer periods during the ninety-day foster care period. During the ninetyday
foster care period, the Hes were free to terminate the foster care agreement with Mid-
South and to regain full legal and physical custody of AMH.
95. On March 8, 1999, the Hes visited with AMH in the Bakers’ home with Ms. Chunn present.
Mr. He told Ms. Chunn that Mrs. He would readily agree to adoption if the adoptive couple
would allow weekly visits until Mrs. He became pregnant with another child. Mr. He also
told Ms. Chunn that, according to Chinese superstition, AMH was less than an ideal child
28
because of AMH’s difficult birth. On March 30, 1999, Mr. He spoke with Ms. Chunn again
about the possibility of adoption; he told Ms. Chunn that Mrs. He was comfortable with
adoption, but Mrs. He wanted to maintain parental rights of AMH so she could remain in the
United States.
96. In mid-April 1999, the Hes applied for a passport for AMH. The passport was issued May
1, 1999. The Hes looked for someone with a green card to take AMH to China at the end
of the ninety-day foster care period, but they were unable to find a suitable person, so the
Hes decided on the Bakers to take care of AMH.
97. The Bakers knew that the Hes intended to secure a passport for AMH in April 1999,
because the Hes had requested the Bakers to provide a photograph of AMH and the Hes
told the Bakers that they were going to have a passport made for AMH.
98. In May 1999, the Bakers did not know that the Hes were illegal aliens.
99. On May 19, 1999, four (4) days before the end of the ninety-day foster care agreement, Ms.
Chunn met with Mr. He to discuss future options for AMH’s care. Mr. He indicated to Ms.
Chunn that the Hes wanted to maintain parental rights, but allow the Bakers to keep and
raise AMH. On May 20, 1999, Ms. Chunn called Mr. He and told him that the Bakers were
unwilling to agree to temporary custody with the Hes retaining parental rights to AMH. On
May 21, 1999, Mr. He called Ms. Chunn and told her that the Hes had decided to take AMH
back into their care.
100. The Bakers did not suggest to the Hes that the Bakers had any interest in adopting AMH
until shortly before the May 23, 1999, expiration of the ninety-day foster care period, when
the Hes approached the Bakers with a request that the Bakers adopt AMH.
29
101. On or about May 23, 1999, the Hes met with the Bakers in the Bakers’ home. Mr. He told
the Bakers that the Hes had decided that the Bakers were the family that the Hes wanted to
adopt AMH. However, Mr. He told the Bakers that Mrs. He wanted to retain parental rights
so AMH would retain the He surname. Mr. He explained to the Bakers that Mrs. He wanted
AMH to retain the He surname because Mrs. He wanted to stay in the United States and
she thought that if AMH kept the He surname it would help the Hes remain in America.
The Bakers told Mr. He that they were unwilling to keep AMH on that basis.
102. Mr. He then told the Bakers that the Hes would take AMH back from the Bakers because
the Hes wanted to give AMH to an attorney, in exchange for the attorney helping the Hes
with Mrs. He’s civil lawsuit, involving the alleged personal injuries she received while
pregnant with AMH. Mrs. Baker told Mr. He that he could go to jail for doing that. Mr.
Baker then suggested the Hes go into another room and talk. The Hes went into another
room, returned in a few moments, apologized to the Bakers, and told the Bakers that Mrs.
He really wanted to win her lawsuit, but they did not have the money to hire an attorney.
Mr. He then told the Bakers that both Mr. and Mrs. He wanted the Bakers to take and raise
AMH. The Bakers then agreed to custody, rather than adoption with the Hes still retaining
their parental rights, because the Bakers were afraid of what might happen to AMH if they
did not agree to take custody of, and raise, AMH. The Bakers told the Hes that they would
agree to custody only on the condition that it be sanctioned by a court order and the Hes
agreed. The Hes and the Bakers then entered into an oral agreement that the Bakers
would have custody of, and would care for and raise AMH, until AMH’s eighteenth birthday.
30
103. On May 24, 1999, Mr. He and Mrs. Baker called Ms. Chunn and told her that the Bakers
and Hes had talked and the Bakers were now willing to accept temporary custody of AMH.
Ms. Chunn got the impression from her conversation with Mr. He and Mrs. Baker that the
Hes and the Bakers had agreed that the Bakers would raise AMH.
104. The Bakers and the Hes asked Ms. Chunn for advice as to whether and how a court order
could be obtained to sanction their arrangement.
105. Ms. Chunn suggested that the Hes and the Bakers meet with an attorney to discuss the
pros and cons of a custody agreement. Ms. Chunn gave no advice to either the Hes or the
Bakers regarding whether the Hes or the Bakers should have separate attorneys to advise
each of them concerning the legal implications of the Bakers’ agreeing to assume the
custody and care of AMH, without the Hes surrendering their parental rights.
106. After the May 24, 1999, conversation with Mrs. Baker and Mr. He, Ms. Chunn arranged a
meeting with attorney Kevin Weaver on June 2, 1999, to explain the legal implications of
transferring custody from the Hes to the Bakers. Mr. Weaver had previously advised Mid-
South, as well as several other adoption agencies, on various legal matters, from time to
time. Mr. Weaver was not acting as the attorney for Mid-South at the June 2, 1999,
meeting, but was conducting the meeting as a favor to Mid-South. Mr. Weaver was not
acting as the attorney for either the Bakers or the Hes at this meeting. Mr. Weaver had not
met either the Bakers or the Hes before the June 2, 1999, meeting, nor did he meet
separately with either the Bakers or Mr. He prior to the June 2, 1999, meeting.
107. Both the Bakers and the Hes were scheduled to meet with Mr. Weaver on June 2, 1999.
However, at the last minute, Mrs. He was unable to attend this meeting because of her
31
work schedule. Mr. Weaver asked Mr. He if he wanted to postpone the meeting so Mrs. He
could be present. Before the meeting began, Mr. He telephoned Mrs. He and explained to
her that everyone was present and ready for the meeting and they were waiting on her to
begin the meeting. Mrs. He told Mr. He that she was ready for the meeting to go forward
and that they could proceed with the meeting without her. Mr. He told Mr. Weaver, Ms.
Chunn, and the Bakers that he had spoken with Mrs. He and that she was ready to go
forward, that they could proceed with the meeting without Mrs. He, and that Mr. He would
explain everything to Mrs. He later.
108. Mr. Weaver then conducted the meeting and outlined to the Bakers and Mr. He what it
meant to transfer custody and the risks and dynamics of temporary custody issues. Ms.
Chunn was present throughout the meeting. Mr. Weaver explained that the Hes would be
giving up certain parental rights, but not necessarily all parental rights. Mr. Weaver
explained that the Bakers would be the ones with the ability to make the everyday decisions
for AMH, i.e. school, healthcare, etc., but that the Hes would not be giving up their other
parental rights.
109. Mr. Weaver told the Bakers and Mr. He that temporary custody meant someone taking care
of and being responsible for someone else’s child, and having all the legal responsibilities
to provide for the child.
110. Mr. Weaver also explained to Mr. He the risk that if a temporary custody order was entered,
a court would have to decide if there was a contest about the Hes regaining custody of
AMH. Mr. Weaver explained that anyone who gives up even temporary custody takes the
risk that they may not get custody back. Mr. Weaver also explained that a court would look
32
at whether there was a change of circumstances, and what was in the child’s best interest
in deciding whether to allow a change in custody.
111. Mr. He asked questions during the meeting about whether the Hes could see AMH and how
often they could see AMH. Mr. Weaver fully answered all of Mr. He’s questions.
112. On June 3, 1999, Ms. Chunn and Mr. Kenny Yao, an experienced interpreter in English and
Mandarin Chinese, met with Mrs. He, alone, in the Hes’ apartment. Ms. Chunn wanted to
make certain that Mrs. He understood what she would be doing if Mrs. He signed a consent
custody order, and whether Mrs. He was one hundred percent willing for a transfer of
custody of AMH from the Hes to the Bakers. Ms. Chunn explained to Mrs. He the things
that Kevin Weaver had said to Ms. Chunn, the Bakers, and Mr. He, the day before in the
meeting in Mr. Weaver’s office. Mrs. He indicated that she understood everything that Ms.
Chunn had told her through Mr. Yao. Mrs. He asked no questions of Ms. Chunn, through
Mr. Yao.
113. On the evening of June 3, 1999, Mr. He called the Bakers and told them that Mr. and Mrs.
He would agree to sign a consent order allowing the Bakers to have custody of AMH.
114. On June 4, 1999, the Hes, the Bakers, and Ms. Chunn met at Mid-South’s office. The Hes
rode with the Bakers and Ms. Chunn in the Bakers’ van to the Juvenile Court of Memphis
and Shelby County, Tennessee.
115. Before the Hes signed the June 4, 1999 petition to change custody, Mid-South, through Ms.
Chunn, signed the appropriate documents relinquishing all physical and legal custody of
AMH that Mid-South had, by virtue of the ninety-day foster care agreement.
33
116. The Hes, the Bakers, and Ms. Chunn met with Ms. Sarah Cloud, a probation counselor and
Foster Care Review Board coordinator for the Juvenile Court. Mr. Kenny Yao was also
present for the meeting. Mr. Yao has been an official court translator for twenty-five years
and is fluent in both Mandarin Chinese and English. Mrs. He speaks Mandarin Chinese
and some English.
117. The Bakers and Ms. Chunn had requested an interpreter for Mrs. He to make certain that
Mrs. He understood the proceedings and what she was agreeing to. The Bakers were
concerned about Mrs. He changing her mind because she had changed her mind several
times before. They were also concerned that Mrs. He might later claim that she did not
understand what she was signing.
118. Ms. Cloud explained the Petition for Custody to the Hes. She explained the significance of
the oath and the Hes’ signature, under oath, on the Petition for Custody. The Hes signed
the Petition for Custody, which stated, “that the parents are unable to financially care and
provide for said child at this time,” in front of Ms. Cloud.
119. Before the Hes signed the Consent Order Awarding Custody, Ms. Cloud met privately in a
conference room with Mrs. He, Ms. Chunn, and Mr. Yao, without Mr. He being present, to
explain to Mrs. He the meaning of the Consent Order Awarding Custody. Ms. Cloud related
everything necessary to the interpreter, Mr. Yao, to explain to Mrs. He the meaning of the
Consent Order Awarding Custody. Mr. Yao explained the Consent Order in the way he
thought best for Mrs. He to understand it. He did not read the document to her word for
word. Mr. Yao felt that he sufficiently explained the meaning of the document to Mrs. He.
Mrs. He said that she understood what Ms. Cloud had said during this meeting, and she
34
made no statements to Ms. Cloud, Mr. Yao, or Ms. Chunn that she did not understand
everything that Mr. Yao told her. Mrs. He did ask if this would be temporary custody, and
she said the word “temporary” in English.
120. During the private conference with Ms. Cloud, Mr. Yao, and Ms. Chunn, Mrs. He was
tearful, emotional, and frequently crying. Mrs. Chunn, who has many years of experience
as a birth and adoption counselor, testified that it is not uncommon for birth mothers to be
upset and tearful when signing documents affecting the mother’s custody or parental rights.
Ms. Chunn further testified that being tearful, emotional, or upset is not an indication that
the birth mother does not understand what she is doing.
121. After the private conference with Mrs. He, Ms. Cloud talked to both Mr. and Mrs. He and
told the Hes that if the Bakers later refused to return custody of AMH to them, that the Hes
would have to go to court and let a judge decide whether the Hes could have custody of
AMH returned to them. Mrs. He emphasized that she did not intend to place AMH for
adoption, but intended to place custody of AMH with the Bakers, reserving her right to
return to Juvenile Court to petition the court for return of custody to the Hes, if she made
such a choice in the future.
122. Ms. Cloud had a routine manner of handling petitions for custody, and she has handled
hundreds of those cases. If anyone disagreed, or expressed any doubts about the
understanding of, or willingness to sign, a consent order awarding custody, it was Ms.
Cloud’s practice to set petitions for custody for a hearing before the Juvenile Court Judge or
a Referee. Ms. Cloud had no doubt that both Mr. and Mrs. He understood the Consent
Order Awarding Custody, and signed it freely and voluntarily.
35
123. The Hes, the Bakers, Ms. Cloud, Mr. Yao, and Ms. Chunn were present in the conference
room when Mr. and Mrs. He signed the June 4, 1999, Consent Order Awarding Custody.
Neither the Hes nor the Bakers asked any questions when all of the parties signed the
Consent Order Awarding Custody.
124. Ms. Cloud would not have allowed any of the parties to sign the consent order if either Mr.
or Mrs. He, or Mr. and Mrs. Baker were not in agreement regarding custody of AMH. Ms.
Cloud would not have allowed any of the parties to sign the consent order if she felt that
anyone was being forced to sign the Order, or if she felt that anyone did not understand the
Order.
125. Neither Mr. nor Mrs. He requested an interpreter for themselves or for each other.
However, the Bakers requested an interpreter for Mrs. He to ensure her understanding of
the document before she signed it. Neither the Hes nor the Bakers requested to have an
attorney present in Juvenile Court on June 4, 1999, before the parties signed the Consent
Order Awarding Custody of AMH to the Bakers.
126. The evidence establishes that both the Hes and the Bakers understood the June 4, 1999,
Consent Order Awarding Custody before they signed it.
127. The evidence establishes that Mr. and Mrs. He understood that if the Bakers did not agree
to relinquish custody of AMH, the only way for the Hes to regain custody of AMH would be
for the Hes to petition a court to regain custody, and the court would then determine
whether the Hes would be allowed to regain custody of AMH based on a change in
circumstances.
36
128. The evidence establishes that both Mr. and Mrs. He understood, before they signed the
June 4, 1999, Consent Order Awarding Custody, that if they filed a subsequent petition to
regain custody of AMH, there would be no guarantee or assurance that a court would allow
the Hes to regain custody of AMH.
129. There is no credible evidence to support the Hes’ contention that on June 4, 1999, the Hes
understood that all the Hes had to do to regain custody of AMH in the future was to petition
a court and custody of AMH would be returned automatically to the Hes.
130. The Hes and Ms. Chunn rode back to Mid-South’s office in the Bakers’ van. The Hes, the
Bakers, and Ms. Chunn had normal, pleasant conversations on the ride back to Mid-South.
Mrs. He was no longer crying or upset.
131. After the entry of the Consent Order Awarding Custody on June 4, 1999, the Hes wanted
AMH to call Mr. and Mrs. Baker “mommy” and “daddy,” and wanted AMH to call Mr. and
Mrs. He “Jack” and “Casey.” Sometimes Mr. He would refer to himself, when speaking to
AMH, as “Uncle Jack.” AMH has always referred to the Hes as “Jack” and “Casey,” since
AMH was old enough to talk.
132. Mrs. Baker began keeping a journal of “Visits from Jack and Casey” on June 5, 1999. She
kept this journal because Attorney Kevin Weaver had advised the Bakers and Mr. He, at
the June 2, 1999, meeting, that the consent custody arrangement could go on for one (1)
year or for eighteen (1 years. Because of the uncertainty of the length of time of the
custody arrangement, and because of the Bakers’ fear of what would happen to AMH if the
Hes obtained custody of AMH, Mrs. Baker wanted to keep a record of the visits.
37
133. On July 25, 1999, Mr. He called Mrs. Baker and asked Mrs. Baker to go to a television
station with AMH and the Hes to talk about the Hes’ civil lawsuit for Mrs. He’s personal
injuries from the alleged assault. Mr. He wanted to try to establish that AMH received
personal injuries, in utero, from the assault.
134. On November 14, 1999, Mr. He called Mrs. Baker and told her that the Hes were bringing a
friend, Elizabeth Marshall, with them to visit AMH the next day. Mr. He asked the Bakers to
pretend that they were foster parents of AMH, not custodial parents, during this visit. Ms.
Marshall asked Mrs. Baker how long the Bakers had been foster parents and how she
could give AMH up after fostering AMH for so long. Mrs. Baker told Ms. Marshall that the
Bakers had no intention of giving up AMH. During the visit, Ms. Marshall kept referring to
AMH as “(AMH) Marshall.” At a minimum, the implication is that there had been
discussions between the Hes and Ms. Marshall about adopting AMH. After the visit, Mrs.
Baker asked the Hes why they had brought Ms. Marshall to visit AMH. Mrs. He became
agitated, said that Mrs. Baker was rude to Ms. Marshall, and Mrs. He refused to answer the
question.
135. In August 1999, the Bakers told the Hes that Mrs. Baker was pregnant and she was due to
deliver in February 2000. On the September 11, 1999, visit, the Hes expressed how
excited they were that AMH would have a new sibling to grow up with. On the September
19, 1999, visit, Mrs. He commented that she was happy that AMH would have a sibling to
go to school with. On October 15, 1999, the Hes asked the Bakers to promise that they
would always send AMH to Christian schools. On October 31, 1999, the Bakers told the
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Hes that the Bakers would like to have photographs of the Hes while the Hes were young to
be able to share with AMH when AMH grew up.
136. On December 22, 1999, the Hes brought gifts for the Bakers and all of their children, but
did not bring a gift for AMH.
137. On February 28, 2000,
作者：Anonymous 在 罕见奇谈 发贴, 来自 http://www.hjclub.org |
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贺案判决后，大而无当的评论太多，具体的专业分析太少
